Mapping the Common Law Development of Physician- Administered Euthanasia and Physician-Assisted Suicide against the Background of the Application of the Bill of Rights

Abstract

The Pretoria High Court is considering whether to recognise a right to physician-assisted death. This is a right to request a physician to administer a lethal prescription which a terminally ill patient can use to end their lives or to be allowed to obtain a lethal prescription which they will self-administer. In deciding the matter, the court will have to determine whether it should remove the common law prohibition on both ways of bringing about a quick and painless death. The question that will have to be answered is whether the common law prohibition is consistent with the Constitution. If it is not, the court will either develop the common law or leave it to Parliament to remove the inconsistency. However, before the court can begin this work it would have to decide on the correct approach to the application of the Bill of Rights to the common law principles of murder and culpable homicide. In effect it would have to decide how sections 8(1), 8(3) and or section 39(2) of the Constitution apply to the dispute.

This research explores how these operational provisions should apply when assessing the constitutionality of the right to physician-assisted death. In effect it argues that during this process the court must always have regard to section 39(2), irrespective of whether there is a direct application or an indirect application of the Bill of Rights to the common law. Its application arises under section 8(1), where the court is asked to declare the common law invalid on the basis of being in direct violation of a constitutional right. It also applies in situations where the court is asked to develop the common law under section 8(3). Lastly, it is applicable where the common law is challenged for being in indirect conflict with the spirit, purport and object of the Constitution. Having established the role of section 39(2) in both the direct and indirect application of the Bill of Rights, the paper concludes by critically analysing the remedies that attend each of the operational provisions in relation to the common law prohibition on physician-assisted death.